May 14, 2004

New vs. Old Democrats on Class Actions

The Class Action Fairness Act, a version of which has already passed the House with White House support, may be brought to the floor of the Senate tomorrow, but Democratic leaders are saying they have enough votes lined up for a filibuster to prevent its passage (Jesse J. Holland, "Supporters looking for more votes to help class action legislation past filibuster", AP/San Francisco Chronicle, Oct. 20; Helen Dewar, "GOP Pushes Vote to Curb Class-Action Suits", Washington Post, Oct. 21; Heather Fleming Phillips, "Group tries to rein in lawsuits", San Jose Mercury News, Oct. 21). If so it's a shame, the more so as some of the most persuasive argumentation for the CAFA has come from New Democrat circles, especially from Walter Dellinger, solicitor general during the Clinton Administration, now a professor at Duke Law and partner at O'Melveny & Myers (home of our co-blogger Ted Frank). ("The Class Action Fairness Act", Progressive Policy Institute, Mar. 11). "The states whose courts have honorably decided not to play class action games are, contrary to fundamental federalism principles, being forced to transfer authority over their citizens' claims and the interpretation of their own laws to other states whose courts seem to have an insatiable appetite for such lawsuits," according to Dellinger. See New Democrats Online, "Breakthrough in the Courts?", Feb. 19; "Compromise on Class Action Reform", May 1.